The Blog of International Judicial Assistance | By Ted Folkman of Pierce Bainbridge

Belfast Project: the Government Says The Case Is Not Moot

Posted on February 13, 2013

As predicted, the government has responded to Boston College’s suggestion of the death of Dolours Price by arguing that the investigation in the UK is not limited to making a criminal case against Ms. Price herself. In its memorandum, the government chides BC for making an argument so cursory that it “would ordinarily be deemed waived,” but because the question goes to the courts’ jurisdiction, it addresses the substantive points. First, the government claims that the subpoenas sought materials that “very well might include interviews implicating persons other than Price in [Jean] McConville’s death.” Second, and perhaps more interestingly, the government rebuts BC’s arguments based on the MLAT itself. BC had argued that under Article 1, § 1bis of the MLAT, mutual legal assistance is only available “for matters in which the administrative authority anticipates that no prosecution or referral, as applicable, will take place.” But the government points out that § 1bis and its limitations are inapplicable, because it applies only where assistance is requested by a “national administrative authorities” conducting an investigation “with a view to a criminal prosecution.” The more general provisions of the treaty permit “mutual legal assistance … for the purpose of proceedings” that include “any measure or step taken in connection with the investigation or prosecution of criminal offenses.” It’s hard to say, and I may be reading between the lines too much, but the government may be saying that while the UK authorities are conducting an investigation of criminal offenses, there is not necessarily a plan for prosecution. Who knows? Unfortunately, we do not have access to the government’s ex parte submissions.

The government also makes an argument I’ve noted before and that the First Circuit accepted: a private party cannot cite non-compliance with the MLAT as grounds for refusing to comply with the request.

7 Comments

The Department of Justice is participating in Irish politics, not in a criminal investigation. Dolours Price said in public, repeatedly, that she drove Jean McConville across the border to be killed. In the months between those public statements and Price’s death, she wasn’t arrested, wasn’t interviewed by the police—Garda or PSNI—and died at home, untouched by the law.

If the point isn’t prosecution, and has never been prosecution, then what the hell are they doing? Federal prosecutors are using their power toward what purpose?

Under § 1, but not §1bis, it seems to be enough that there be an investigation of a crime, even if there is not currently a plan to prosecute. At least that’s how the government reads the treaty, and I think the reading is plausible. In any event, this is not an argument that is open to BC or any other private party to make, as the First Circuit held.

By that I mean that if the Attorney General determined that the crime was being investigated was a political crime, he had discretion not to comply with the request. If the crime was not a political crime, then it seems to me he did not have discretion under the treaty even if the UK authorities should not have made the request for one reason or another.